Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21484 of 2021 Applicant :- Shivendra Mishra Opposite Party :- State of U.P.
Counsel for Applicant :- Baijant Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up through video conferencing.
Heard Sri Prabha Shankar Mishra, learned counsel for the applicant who states that he has filed his memo of appearance in the Registry of this office yesterday and Sri Virendra Kumar Maurya, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Shivendra Mishra, seeking enlargement on bail during trial in connection with Case Crime No. 60 of 2019, under Sections 493, 376, 506 I.P.C., registered at Police Station Turkpatti, District Kushinagar.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first information report is highly belated without any proper and reasonable explanation. It is argued that taking all the allegations of the prosecution case as per the first information report lodged by the victim to be true, she solemnized marriage with the applicant which was registered before the competent authority on 13.08.2014 and after that she lived with the applicant for two years after which she was thrown out of the house by the applicant and his family members on the pretext of the applicant getting himself married with someone else for ulterior motive and then she has got registered the present first information report. Learned counsel has further placed before the Court the statement of the victim recorded under Section 164 Cr.P.C., the copy of which is annexed as Annexure-5 to the affidavit, and argued that even therein the victim has stated that the applicant who happens to be the devar of her elder sister was in a love affair with the victim after which they had decided to get married and had solemnized marriage on 13.08.2014 and later on, she shifted to Allahabad with him where the applicant was studying and subsequently, the applicant got selected for the post of Lekhpal after which he changed his mind and wanted to re-marry with ulterior motive and the victim was then tortured and in the year 2017, she was sent back to her house. It is argued that the victim was a consenting party and was a major and well aware about worldly affairs. It is further argued that the dispute is purely arising out of a dispute between couples which is matrimonial in nature.
It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been pointed out that the applicant is not having any criminal history as stated in para 20 of the affidavit and he is in jail since 19.03.2021 and there is no likelihood of early conclusion of trial and hence, the applicant may be released on bail during pendency of trial.
Learned A.G.A. has opposed the prayer for bail and argued that the applicant is named in the first information report and there are allegations of his indulging in physical relationship with the victim who is the first informant. It is argued that the prayer for bail be rejected.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the applicant and the victim had solemnized their marriage, the victim was an adult at that time and the marriage was with consent of the parties which subsisted for quite a long time after which the victim was sent back to her house. The relationship appears to be consensuous relationship.
Looking to the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Shivendra Mishra, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229- A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 26.5.2021 AS Rathore Digitally signed by Justice Samit Gopal Date: 2021.05.26 17:03:57 IST Reason: Document Owner Location: High Court of Judicature at Allahabad